I think there's a quietly hatched plot somewhere deep inside the vast right wing conspiracy to eviscerate the fourteenth amendment and expand the government's power to strip people of their citizenship beyond all historical precedent. It is, of course, all based on lies, but that is just a standard part of the right's play book. They have used this strategy very effectively to move the needle on gun rights and abortion, so there's no reason to believe it won't succeed on citizenship.

Anyone who has any kind of paper trail linking them to another country should be very afraid. You may have a dual citizenship and not even know it. You may not even be able to renounce it once you find out.

My grandfather had no idea he was a Jew until the Gestapo knocked on the door one day and told him. This is how these things begin.

23 comments:

@Ron:To defend this position he has to argue, of course, that the Fourteenth Amendment doesn't actually mean what it plainly says

It plainly says "subject to the jurisdiction thereof". What does that mean? I don't think that's as plain as you seem to think it is.

what the people who wrote it said it says,

As the very article you linked to notes, the people who wrote it said "subject to the jurisdiction" of the United States means not owing allegiance to any other country. What country does a person who comes to the US illegally owe allegiance to? What country does a child born to such a person owe allegiance to?

and what everyone has agreed for 150 years that it says.

What evidence do you have to support this extremely strong claim? I think the best you're going to be able to find is that proponents of extremely permissive immigration policies have agreed for 150 years that the 14th Amendment says what you think it says, but that's a much, much weaker claim than the one you are making.

Um, that there is not a single instance of a person born in the U.S. in the last 150 years whose citizenship has ever been successfully challenged in court?

But it turns out that it is not the case that "everyone" has agreed for 150 years. The dissent apparently does go back a few years.

The "subject to the jurisdiction thereof" was intended to exclude native Americans and the children of diplomats, both of which are specifically excluded from being under the jurisdiction of the U.S. despite being born here. Everyone else born here is clearly "subject to the jurisdiction of the U.S." no matter what their parents' immigration status is. The *whole point* of the 14th amendment was to unambiguously confer citizenship on people whose parents' citizenship status was ambiguous (by virtue of their having been slaves).

@Ron:that there is not a single instance of a person born in the U.S. in the last 150 years whose citizenship has ever been successfully challenged in court?

That's not evidence that "everyone has agreed for 150 years". Many people might disagree without being able to successfully challenge that interpretation in court.

The "subject to the jurisdiction thereof" was intended to exclude native Americans and the children of diplomats

I understand that this is the interpretation that you favor, and that is favored by advocates of more permissive (and less draconian) immigration policies. I even agree, based on reading the law review article by Garrett Epps that was referenced in Slate article you linked to, that all things considered, your favored interpretation is more reasonable than the interpretation argued for in the Washington Post op-ed (but see further comments below).

However, that's a much, much weaker claim than the claim you are making. The claim you are making is basically that your favored interpretation is so obvious that anyone who argues against it is obviously bullshitting and has ulterior motives, since nobody could possibly hold their position on reasonable grounds.

I agree that our current immigration policy is bad and that we need to fix it. However, I don't think it can be fixed by simply declaring by fiat that one particular position is right and anyone who disagrees with it is obviously up to no good. Going back to the Epps review article, the key point that I think it fails to make is that the legislative history of the 14th Amendment, and the US vs. Wong Kim Ark Supreme Court decision in 1898, adequately addressed the question of how children of illegal immigrants should be treated. Epps correctly notes that even in the 1860's, immigration was a known and recognized issue and a significant fraction of the US population was immigrants. However, there was no such thing then as an illegal immigrant: as Epps himself notes, that category was not even recognized. Certainly there was no illegal immigrant issue before the country the way there is today.

So I don't think it holds water to claim that a debate in Congress 150 years ago, or a Supreme Court decision 120 years ago, can somehow be obviously held to apply to a class of people that didn't even exist then, much less pose a significant public policy issue. Birthright citizenship might end up being the right answer for those people's children as well, but trying to claim that that question was already answered a century and a half ago is just not valid. We need to have an actual debate, now, about what our policy should be.

Oh, come on. There's not a single statement for which you cannot find one nutcase who will disagree with it. That doesn't mean that there has not been an effective consensus.

> The claim you are making is basically that your favored interpretation is so obvious that anyone who argues against it is obviously bullshitting and has ulterior motives, since nobody could possibly hold their position on reasonable grounds.

Yep, that's pretty much what I'm saying. If this new interpretation were to take hold the whole concept of citizenship would be thrown into chaos. If any of your ancestors could be shown to have entered the country illegally, or lied or made a mistake on their naturalization application, your own citizenship could be challenged even if you were born in and lived your entire life in the U.S.

And I think it's a safe bet that the burden of this uncertainty would fall disproportionately on dark-skinned people.

> there was no such thing then as an illegal immigrant

Huh? What was Ellis Island all about then?

> We need to have an actual debate, now, about what our policy should be.

I agree, but that is a completely separate question from what the Constitution says. The result of that debate may be that we should amend the Constitution. But trying to fix problems with the Constitution by doing end-runs around it rarely ends well.

@Ron:That doesn't mean that there has not been an effective consensus.

Then your standard for what counts as "effective consensus" is apparently much looser than mine. More generally, it seems like people's standards for that in the US as a whole vary widely. Which is part of the problem.

If this new interpretation were to take hold the whole concept of citizenship would be thrown into chaos.

This does not mean your interpretation is as obvious as you claim. It just means your interpretation will probably result in a much more reasonable overall policy. I already said I agreed with that. But the fact that you and I agree doesn't make it as obvious as you claim.

Again, your standards for how obvious an interpretation of the Constitution is appear to be much looser than mine. And people's standards in the US more generally seem to vary widely. Which, again, is part of the problem.

What was Ellis Island all about then?

Ellis Island didn't even open until 1892. The Epps article noted that the category of "illegal immigrant" didn't exist at the time the 14th Amendment was proposed, debated, and adopted in the 1860s.

It's true that the Federal government had begun to impose immigration restrictions by the time of the Wong Kim Ark Supreme Court decision in 1898 (according to the Wikipedia page on Ellis island, the first Federal regulations were in 1890). But the Supreme Court opinion doesn't mention that at all, so it appears that it was not considered significant in judging the case.

trying to fix problems with the Constitution by doing end-runs around it rarely ends well.

I agree, but trying to figure out whether a particular policy decision is an end run requires figuring out what the Constitution says. If the answer is "reply hazy, ask again later", as I believe it is for the specific question of the status of the children of illegal immigrants, then what the Trump administration is doing, however repugnant it might seem, is not an end run around the Constitution.

(Btw, an Amendment would not be the only possible way to address the current ambiguity I see with what the Constitution says. Getting a legal challenge to the current policy in front of the Supreme Court would be enough. Although the current Court might not decide the case the way you and I agree would be the most reasonable way.)

@me:the Supreme Court opinion doesn't mention that at all, so it appears that it was not considered significant in judging the case

Actually, a somewhat stronger statement is true. The Supreme Court opinion specifically says that the question it is judging is:

"whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States."

In other words, the fact that the Chinese parents of Wong Kim Ark were in the country legally was one of the factors the Court considered in rendering its opinion. So on its face, that opinion should not apply to a case where the parents are in the country illegally.

>Ominous development #2: The Trump administration is moving aggressively to strip U.S. citizenship from anyone who lied on their application, even if the lie was immaterial or inadvertent. The last time anything like that happened was during the McCarthy era.

Non-hysterical interpretation:The executive branch is enforcing the law, by examining citizenship appications for fraud. Those who obtained citizenship illegally will have it revoked. Some of those pepole likely concealed terrorist connections overseas.

>Ominous development #3: The Washington Post published an op-ed by a former Trump administration official arguing that birthright citizenship is a "historical and Constitutional absurdity" and should be abolished. To defend this position he has to argue, of course, that the Fourteenth Amendment doesn't actually mean what it plainly says, what the people who wrote it said it says, and what everyone has agreed for 150 years that it says.

Non-hysterical intepretation:Peter has convered this one. I will just add that you do hear talk of a constitutional amendment to revise the 14th amendment to end birthright citizenship (I would suggest that the amendment say that citizenship is determined by Congress).

>I think there's a quietly hatched plot somewhere deep inside the vast right wing conspiracy to eviscerate the fourteenth amendment and expand the government's power to strip people of their citizenship beyond all historical precedent.

Haven't heard of any plot to eviscerate the fourteenth amendment and expand the government's power to strip people of their citizenship beyond all historical precedent, but I'll let you know if I do.

>It is, of course, all based on lies, but that is just a standard part of the right's play book. They have used this strategy very effectively to move the needle on gun rights and abortion, so there's no reason to believe it won't succeed on citizenship.

You know, it's funny. I thought, and still think, that every word coming out of President Barak Obama's mouth is a lie. This extends to Pelosi and Schumer as well.

>My grandfather had no idea he was a Jew until the Gestapo knocked on the door one day and told him. This is how these things begin.

> you do hear talk of a constitutional amendment to revise the 14th amendment to end birthright citizenship

Nothing wrong with that. That's how the process should work. (I actually agree that birthright citizenship is broken, but I don't see any way to improve it that doesn't open the door to racial discrimination. I think that would be the greater evil.)

What bothers me is arguing that the Constitution *as currently written* allows someone born in the U.S. to be denied citizenship because of something their parents did. The Constitution *plainly* does *not* allow that as currently written, and if such an argument were to succeed that would set an extremely dangerous precedent.

@Ron:What bothers me is arguing that the Constitution *as currently written* allows someone born in the U.S. to be denied citizenship because of something their parents did. The Constitution *plainly* does *not* allow that as currently written

This seems to be a different argument from the one you were making (or at least referring to) before. The earlier argument was that parents here illegally were still "subject to the jurisdiction" of the US, so a child born here to them is a citizen by the 14th Amendment. Now you seem to be arguing that, even if parents here illegally were not "subject to the jurisdiction" of the US, it's still somehow unconstitutional to deny the child citizenship on that basis. Is this still based on your reading of the 14th Amendment, or is there other Constitutional language that you think is relevant here?

"the Supreme Court in 1875 declared regulation of immigration a federal responsibility"

"The Chinese Exclusion Act of 1882 ... prohibited certain laborers from immigrating to the United States

So the 14th amendment was ratified in 1868. SCOTUS declared immigration policy to be under congressional control seven years later. Congress actually started regulating immigration seven years after that. Ellis Island opened ten years after that, but that's a red herring. I brought up Ellis Island only to show that by 1892, only 24 years after the passage of the 14th amendment, the concept of "illegal immigration" was *firmly* established.

Now, it still might be true that the idea that someone might enter the country illegally really did not cross anyone's mind in 1868, though this seem exceedingly unlikely to me. But even if it is true, so what? The 14th amendment still says what it says. The fact that its drafters showed an extraordinary lack of foresight does not give us license to simply ignore it, at least not if we still care about the rule of law.

> trying to figure out whether a particular policy decision is an end run requires figuring out what the Constitution says.

Of course. But there is no way to argue that a child born in the U.S. is not "subject to the jurisdiction thereof" unless they are specifically excluded by law from being under that jurisdiction (as is the case with native Americans and children of diplomats). *Everyone* inside U.S. territory is "subject to the jurisdiction thereof" unless specifically exempted. If this were not the case, you could not even say that someone was here illegally! For someone to be doing something contrary to U.S. law they must -- by definition! -- be under the jurisdiction of the U.S.

The argument against birthright citizenship is so muddled that it is hard to re-state it without caricaturing it. The argument goes something like (AFAICT): if someone is here illegally, then they are not subject to the jurisdiction of the U.S. (notwithstanding that if this were the case, they would not be subject to U.S. law -- that is what "being under the jurisdiction" *means*). Then they go one to argue that this state of not being under the jurisdiction of the U.S. is somehow hereditary, and so it applies to their children as well.

*Both* of these premises are wrong, but the argument fails if either premise fails. So when arguing my side I can grant either premise as a hypothetical and still prevail. I may do that from time to time, and so it may appear that my position is changing. But it's not.

@Ron:*Everyone* inside U.S. territory is "subject to the jurisdiction thereof" unless specifically exempted. If this were not the case, you could not even say that someone was here illegally! For someone to be doing something contrary to U.S. law they must -- by definition! -- be under the jurisdiction of the U.S.

If "subject to the jurisdiction of" means "subject to the laws of in a practical sense" (because the US government has the physical force at its disposal to deport someone the government claims is here illegally, whether that person agrees or not), then yes. But, as I pointed out a number of posts ago, the people who wrote the 14th Amendment said "subject to the jurisdiction of" meant something stronger: owing allegiance to no other country.

> the people who wrote the 14th Amendment said "subject to the jurisdiction of" meant something stronger: owing allegiance to no other country

The ABC (Anti-Birthright-Citizenship) argument fails on that criterion too. A newborn baby doesn't owe allegiance to anyone or anything.

Also, if owing allegiance to no other country were a pre-requisite for U.S. citizenship, then no one could be a dual citizen of the U.S. and another country. (One of the reasons that I find the BofA question ominous is that I fear that elimination of dual citizenship is where this may be headed.)

> What specifically in the Constitution makes the second premise (that "not being subject to the jurisdiction of the US" can be hereditary) wrong?

It *can* be hereditary. In fact, it *is* hereditary in the two cases which actually apply: children of diplomats, and native Americans.

But these two cases are *completely different* from illegal immigrants. Children of diplomats and native Americans *cannot be prosecuted under U.S. law*. If you want to extend that privilege to illegal immigrants then you might have an argument, but you can't have it both ways. Either illegal immigrants are subject to U.S. law, in which case their children born here are citizens, or they are not, in which case they are in the same category as diplomats and native Americans and you can't deport them.

@Ron:It *can* be hereditary. In fact, it *is* hereditary in the two cases which actually apply: children of diplomats, and native Americans.

But these two cases are *completely different* from illegal immigrants...

Ok, but the argument you're making here is aimed at the first premise you said was wrong, not your second one: it's an argument that illegal immigrants, and hence their children, *are* "subject to the jurisdiction" of the US. I understand your arguments here and don't have anything further to contribute to the discussion on that.

The second premise you said was wrong was "this state of not being under the jurisdiction of the U.S. is somehow hereditary, and so it applies to their children as well". But now you're saying the state of not being under the jurisdiction of the US *is* hereditary--that in cases where the parents *are* not under the jurisdiction of the US, their children are too. That would make the second premise right. So I'm still confused about what the second premise is that you think is wrong, or even if there is one; I was expecting you to point at some Constitutional language or court decision along the lines of "you can't punish children for something their parents did".

@Ron:in which case they are in the same category as diplomats and native Americans and you can't deport them.

Diplomats can't be deported, but they can be declared persona non grata and made to leave the country (along with their families) and return to their home country.

I agree native Americans can't be made to leave the country, but AFAIK if they are subject to tribal jurisdiction (instead of US civil law) and found outside of tribal lands, they can be forcibly returned to tribal lands.

Both of these cases seem like reasonable analogies to deporting illegal immigrants who are not "subject to the jurisdiction" of the US in the sense required by the 14th Amendment.

No. The state of not-being-under-the-jurisdiction is hereditary not because this state is hereditary in general, but because the law that establishes the state of not-being-under-the-jurisdiction for two specific groups of people (native americans, diplomats and their children) says it's hereditary in those cases.

Everyone in the U.S. is under its jurisdiction unless specifically exempted by law. It just so happens that the two exemptions currently on the books are hereditary. All of this is completely irrelevant to the question of birthright citizenship because illegal immigrants are manifestly *not* excluded from being under the jurisdiction of the U.S.

> I agree native Americans can't be made to leave the country, but AFAIK if they are subject to tribal jurisdiction (instead of US civil law) and found outside of tribal lands, they can be forcibly returned to tribal lands.

Hm, so this article (and the one on the Indian Citizenship Act linked to) leaves open the question of whether native Americans who live on tribal lands but are traveling outside tribal lands are subject to US civil law. If they're citizens it would seem that they would be, which would take them out of discussion altogether as far as the topic of this thread is concerned.

@Ron:Everyone in the U.S. is under its jurisdiction unless specifically exempted by law.

This is just another way of stating your position. It's not an argument for it. It's certainly not an argument for this proposition being "plainly stated" in the Constitution, since the Constitution nowhere says anything like this.

It's not in the Constitution, it's in the dictionary. The word "jurisdiction" means "the official power to make legal decisions and judgments." If someone is not under the jurisdiction of the U.S. then the U.S. has no official power to make legal decisions and judgements about them. If you claim the power to enforce your laws on someone, then you are claiming jurisdiction over that person. That's simply what "jurisdiction" *means*.

If you dispute this then you are I are *literally* not speaking the same language.

It would be really nice if I could assume that every word used in the Constitution, or in any law, or in any Supreme Court decision, had its standard dictionary meaning. But I long ago gave up any hope of being able to make that assumption.

If you claim the power to enforce your laws on someone, then you are claiming jurisdiction over that person.

Ok, but now this is yet another argument, that the basis for the children born here of illegal immigrants being citizens is that the US government claims the power to enforce its laws on them. So the US government could change who is subject to its jurisdiction by changing its enforcement policy.

For example: suppose the US government says (as an executive order, not a statute passed by Congress) that, if a person is stopped at the border and detained, they are not under US jurisdiction: the US government claims no power to enforce any laws on them except the law governing who can legally enter the country.

Under this new enforcement regime, a pregnant woman is stopped at the border and detained. She is held in a facility pending deportation, and while she is there, she gives birth. The US government has claimed no power to enforce any law on her other than its power to deport her as an illegal immigrant. Is the child still subject to the jurisdiction of the US and therefore a citizen?

The issue I am trying to bring out here is that "jurisdiction" is not all or nothing. Even in the case of diplomats, the US still has *some* jurisdiction, since it can declare them persona non grata and force them to leave the country. And if the basis for how much jurisdiction counts as jurisdiction for the purpose of the 14th Amendment is what the US government claims, then the "plain language" of the Constitution is not plain enough, at least not for me. Before I was willing to claim that the issue of birthright citizenship was "plain" as a matter of Constitutional law, I would want to see either an amendment or (much more likely although I would prefer an amendment) a Supreme Court decision.

If you dispute this then you are I are *literally* not speaking the same language.

Do you have any evidence that "jurisdiction" means anything other than the dictionary definition?

> Ok, but now this is yet another argument, that the basis for the children born here of illegal immigrants being citizens is that the US government claims the power to enforce its laws on them.

No! It's an argument for why the "having jurisdiction" clause does not exclude the children of legal immigrants from having birthright citizenship granted them under the 14th amendment.

> The US government has claimed no power to enforce any law on her other than its power to deport her as an illegal immigrant.

But that's simply not the case in the real world. Illegal immigrants are regularly prosecuted for breaking U.S. laws.

If the *only* action the government *ever* took against illegal immigrants was deporting them, you might have a case. But it isn't, so you don't.

In fact, even that would not be not enough. That would show that the government lacks jurisdiction over the *parents*. To show that the government lacked jurisdiction over the *child*, i.e. the putative citizen, you would have to show that it treats the children of illegal immigrants with the equivalent of diplomatic immunity, with the only remedy available to the government for the child of an illegal immigrant breaking any law being deportation. But that is, of course, risible.

Under the 14th amendment, people born here are either citizens or (the essential equivalent of) diplomats. That's the way it has been since 1868 and that is the way it is now. The only way to change it (and please note that I'm not necessarily saying we shouldn't) is with another amendment.